[2023] QCA 221

COURT OF APPEAL

MULLINS P
BOND JA
FLANAGAN JA

CA No 141 of 2023
SC No 389 of 2023
SC No 759 of 2023

THE KING

v

BARBI, Jordan Elliott	Applicant

BRISBANE

THURSDAY, 16 NOVEMBER 2023

JUDGMENT

FLANAGAN JA:  On 31 July 2023 the applicant pleaded guilty to counts 4 to 15 on indictment 389 of 2023 as well as four summary charges.  The most serious offence was count 4, possessing a dangerous drug in excess of two grams.  This offence carries a maximum sentence of 25 years imprisonment.
As a result of the execution of a search warrant on 4 June 2022, the applicant was found to be in possession of 26.973 grams of substance containing 19.771 grams of methylamphetamine with a purity of 73.3 per cent.  The sentence proceeded on the basis that the methylamphetamine was possessed for a mixed purpose, in that the applicant may have used a small quantity of the methylamphetamine for personal use, but the predominant purpose was a commercial one with the intention being to sell the methylamphetamine to others.
Count 5 concerns the applicant being in possession of approximately 114 grams of cannabis.  The cannabis was possessed for a commercial purpose.
Count 6 is in relation to the possession of a weapon, namely a taser.
Counts 7 to 15 relate to police examining the applicant’s mobile phone which showed either supplies or acts preparatory to supply of both cannabis and methylamphetamine during the period 13 March 2022 to 31 May 2022.
The summary charges concern the applicant being in possession of property suspected of being proceeds of an offence under the Drugs Misuse Act 1986 (Qld), namely $3,470.00 in cash as well as various drug paraphernalia such as glass pipes, digital scales, empty clip seal bags and two grinders.
The sentence was complicated by the fact that the offending occurred while the applicant was on parole for drug trafficking.  On 24 September 2020 Bradley J sentenced the applicant to three years six months for trafficking in dangerous drugs, including methylamphetamine over a two month period.  A parole eligibility date was fixed by Bradley J at 24 September 2020, which was the date of sentence.  The applicant was released on parole on 17 December 2020.  The Parole Board suspended the parole order on 6 June 2022 and the applicant was received into custody on 9 June 2022.  The applicant remained in custody from that date to 31 July 2023, which was the date he was sentenced.  At the time of offending, he had been on parole for approximately 15 months.  The effect of the applicant being sentenced for the subject offences is that the parole order applicable to the sentence imposed by Bradley J was cancelled as at 13 March 2022 pursuant to s 209(1) of the Corrective Services Act 2006 (Qld).
The learned sentencing judge imposed imprisonment for three years and six months for count 4, which as observed was the most serious offending, with lesser concurrent sentences for counts 5 to 15.  For the summary charges, the applicant was convicted but not further punished.  Pursuant to s 159A of the Penalties and Sentences Act 1992 (Qld), her Honour declared that 417 days spent in pre-sentence custody between 9 June 2022 and 30 July 2023 was time that was taken to be imprisonment already served under the sentences.  Her Honour further ordered that all sentences of imprisonment were to be served not only concurrently with each other but also with the sentence imposed by Bradley J on 24 September 2020.  A parole eligibility date was fixed at 28 February 2024.
The applicant applies for leave to appeal against sentence on the ground that the sentence imposed was manifestly excessive.  No complaint is made of the head sentence of three years six months for count 4.  The applicant submits that in fixing the parole eligibility date at 28 February 2024, the sentencing judge failed to sufficiently ameliorate the sentence for totality and an earlier parole eligibility date should have been imposed.  This submission cannot be accepted.  No misapplication of principle has been demonstrated in her Honour fixing a parole date at 28 February 2024 so as to render the sentence manifestly excessive.
In sentencing the applicant, her Honour took a number of matters into consideration.  Her Honour gave due regard to the applicant’s early pleas of guilty.  The applicant was 41 years of age at the time of the offending and 42 as the date of sentence.  Reference was made to the applicant’s eight page criminal history which included being dealt with in the Supreme Court for serious drug offending in 2000, 2008, 2014 and 2020.  Her Honour noted that in spite of attempts of rehabilitation, the applicant had continued to struggle with an ongoing drug addiction.
Her Honour specifically referred to the fact that the imposition of a term of actual imprisonment had the effect of cancelling the applicant’s parole order and he would be required to serve out the balance of the sentence imposed by Bradley J.
Her Honour also made specific reference to the principle of totality and noted the importance of not imposing a sentence that would have a crushing effect on the applicant.
Her Honour referred to a number of references which described the applicant as a hard and diligent worker.
Her Honour noted the Crown’s submission that in relation to the pre-sentence custody, the applicant was serving time under the sentence imposed by Bradley J and accordingly a head sentence of four years should be reduced to three years, without any time being declared, with a parole eligibility date fixed at 30 September 2024.  Defence counsel sought a head sentence of three years with the full 417 days of pre-sentence custody declared and a parole eligibility date fixed at the date of sentence.  It was further submitted that the sentence be concurrent with the sentence imposed by Bradley J.  In considering these competing submissions, her Honour observed:
“Ultimately, I am of the view that the Crown’s position would result in too high a sentence and the defence submission would result in too low a sentence, to put it in very brief terms.”
Her Honour further noted that any sentence imposed did not have to be cumulative on the sentence imposed by Bradley J.  While the offences committed by the applicant are not schedule 1 offences which would have required any sentence imposed to be made cumulative with the previous sentence, pursuant to s 156A of the Penalties and Sentences Act, her Honour retained a discretion pursuant to s 156 as to whether any sentence should be made cumulative.  The fact that her Honour declared the whole of the 417 days as pre-sentence custody and made the sentence concurrent with the sentence imposed by Bradley demonstrates that the structure of the sentence adequately reflected the totality principle.  The whole of the 417 days was declared in circumstances where the applicant was not only on remand for the offences for which he was arrested on 4 June 2022, but was also serving time under the sentence imposed by Bradley J.  As correctly submitted by the respondent, the applicant was a mature aged recidivist drug offender engaged in commercial drug activity while he was on parole for drug trafficking.
The order I propose is that the application for leave to appeal against sentence be dismissed.
MULLINS P:  I agree.
BOND JA:  I agree.
MULLINS P:  The order of the court is application for leave to appeal against sentence dismissed.